US Fish and Wildlife Service Finalizes Eagle Rule Revision

On December 14, 2016, the US Fish and Wildlife Service (FWS) finalized its proposed revisions to the Eagle Rule (Final Rule) and released its Record of Decision (ROD). The Final Rule allows companies and others to obtain 30-year incidental take permits under the Bald and Golden Eagle Protection Act of 1940 (the Act) in exchange for committing to conservation measures designed to reduce impacts to eagles.

As discussed in our previous articles (here and here), this is FWS’ second attempt at revising the Eagle Rule to allow for 30-year permit terms. The draft version of the revisions and the Draft Programmatic Environmental Impact Statement (DPEIS) were originally released on May 2, 2016. FWS accepted public comments on the proposed revisions and DPEIS until July 5, 2016, receiving over 700 comments from other agencies, public interest groups, industry organizations, and private citizens.

Like the draft revisions, the Final Rule allows developers to obtain formal permits that set limits on the number of bald and golden eagles that can be impacted by man-made activities (including renewable energy projects, transmission lines, and airports). In exchange, compliant permit holders will be shielded from regulatory and federal prosecution under the Act. The permitting program has been in place since 2009. The Final Rule increases permit terms for bald eagles from 5 to 30 years, with reassessments every 5 years. The Final Rule also modifies the preservation standard to require take to be consistent with the goal of maintaining stable or increasing breeding populations in all eagle management units. Further, the Final Rule renames “non-purposeful take permits” as “incidental take permits,” and streamlines eagle nest take regulations to eliminate the distinction between standard (one-time) and programmatic (multiple times) nest removal permits.

The final revisions had several changes from the draft revisions. Most notably:

Bald eagle take limits were modified from 4,200 eagles annually to 3,742 bald eagles in the coterminous United Sates and 3,776 eagles in Alaska, for a total of 7,518 bald eagles annually. Golden eagle take limits remain zero.

FWS elaborated on its general compensatory mitigation requirements. Specifically, compensatory mitigation must be additional (would not have otherwise occurred), durable, maintain its intended purpose for as long as the impacts of the authorized project persist, and include mechanisms to account for and address uncertainty and the risk of failure.

FWS adopted two principles to address quantitative uncertainty in estimating both eagle takes and compensatory mitigation: (1) using formal adaptive management; and (2) being risk-averse at the outset with respect to estimating impacts on eagles. Adaptive management is a process whereby: (i) predictions are made regarding anticipated effects of an activity; (ii) data regarding the outcomes of the activity are collected; (iii) the predictions are updated to reflect the actual outcomes of the activity; and (iv) the updated predictions are used to change the activity.

The Final Rule now requires additional conservation measures beyond those spelled out in the adaptive management permit conditions (AMPC) only in circumstances wherein authorized take levels are exceeded in a manner or to a degree not addressed in the AMPC. The draft revisions required these measures “when reasonably likely to reduce risk to eagles.”

The Final Rule includes pre-construction survey standards for predicting eagle fatalities at wind facilities, using a local area population cumulative effects analysis based on the Eagle Conservation Plan Guidance, Model I (ECPG). This replaced the incorporation by reference of the ECPG appendices in their entirety in the draft revisions.

FWS incorporated greater detail on its collision risk model (CRM) for predicting eagle fatalities, and committed to updating its CRM within 18 months using publicly-available data collected at wind facilities operating without incidental eagle take permits.

FWS agreed to require third-party monitoring for some permits on a case-by-case basis, and made assurances that such monitoring would not add significant costs for permittees.

In the Final Rule, FWS expressed hope that expedited permitting, greater accuracy in estimating eagle take, and increased take limits would capture more unpermitted take by encouraging project developers to apply for permits and implement conservation measures. FWS also acknowledged the importance of providing certainty to long-term projects by offering long-term permits.

The Final Incidental Take and Eagle Nest Take Regulations will be published on December 16, 2016, and will go into effect 30 days later. These revisions are an important development for wind energy, transmission, airport, timber, and other large infrastructure projects. Latham & Watkins Environment, Land and Resource attorneys will continue to track the implementation of the revised eagle rules.

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